Director of Public Prosecutions v Hoang

[2017] VCC 781

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00278

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUC DUC HOANG

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2017
DATE OF SENTENCE:	15 June 2017
CASE MAY BE CITED AS:	DPP v Hoang
MEDIUM NEUTRAL CITATION:	[2017] VCC 781

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – cultivate a narcotic plant, Cannabis L – immediate custodial sentence

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. Lenthall	John Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Mr J. Van Arkadie	Victoria Legal Aid

HER HONOUR:

1Phuc Du Hoang, you have pleaded guilty before me to one charge of cultivating a narcotic plant at Reservoir between 11 June 2016 and 30 August 2016.

2The maximum penalty that applies, given that a trafficking purpose is not excluded, is 15 years' imprisonment.

3I note that you were arrested on 30 September 2016 and since that time you have been held in custody and you have served 258 days' pre-sentence detention.

4At the time of the offending you were 22.  You are a Vietnamese citizen.  You had travelled lawfully to Australia in 2013 on a student visa that was valid at the commencement of the offending but subsequently expired on 15 July 2016. 

5When your custodial sentence is completed you are a person who, pursuant to s.254(2) of the Migration Act1958, is liable to be held in immigration detention under the Act and it is likely that you will be deported upon completion of your custodial sentence.

6The gravamen of this offending is that you were asked by a couple of unknown males, who are Vietnamese, to secure a lease on a home so that they could set up the premises to grow marijuana.

7You entered into an agreement with a Ms Lee, who is the owner of the property.  A lease was signed on 11 June 2016 and at the time you provided copies of false passports in the name of other people and you paid a bond of $1735 cash. She then provided you with a Condition Report and a Tenancy Agreement completed and some house keys.

8You then deposited rent into her bank account on one occasion and there are two further deposits that were undertaken subsequently for rental by others. 

9You were arrested on 30 September 2016 at home.  Previously, the month before, on Tuesday, 30 August 2016, police executed a warrant of the rental premises and discovered it was a grow house for a sophisticated hydroponic crop.  There were six grow rooms and a total of 152 cannabis plants were located in various stages of maturity, found to weigh 100.70 kilograms when analysed by a botanist.

10The Crown case is that you were not responsible for the growing of the crop.  Rather, that you facilitated the obtaining of the house for the purposes of the crop to be established. You will be sentenced for your role on that basis, that is, that it was limited to securing the leasehold of the premises for that purpose. I have also had regard to the period of the offending, which is between 11 June 2016 and 30 August 2016.

11Having regard to the spectrum offending that is represented by this sort of charge I consider your role, whilst important, is not as the instigator, and I consider therefore that this offending is at the lower end of the scale of seriousness for this sort of offence and you will be sentenced on that basis.

12I have had regard to the mitigating factors put on your behalf by Mr Van Arkadie.  You have acknowledged that this offending is serious. You acknowledge that in sentencing you the court must emphasise deterrence, denunciation and just punishment.

13The reason for your offending was because you wanted to make some money and you were encouraged to do so by the two unknown men whom you had met at the TAB.

14You demonstrated a degree of naiveté and immaturity by not asking any questions of these men when they offered to pay you money to secure the property for rental and you now face punishment by the court for this serious criminal offence.

15I have had regard to the fact that you entered a plea of guilty to this charge at an early opportunity.  There is utility in your plea.  No witnesses had to give evidence and the community and the State has been spared the expense and uncertainty of a trial.  Your plea does facilitate justice.  Your sentence will be discounted accordingly.

16I have noted that you were cooperative with the police and you made a number of admissions concerning your involvement when you were interviewed by police at the Mill Park Police Station upon your arrest.  I have had regard to the fact that you are still a relatively youthful man, you are only 23.  You were 22 at the time of the offending, and I have had regard to the relevant sentencing principles that apply to youthful offenders.  You have good rehabilitation prospects.  That is reflected in your conduct since you have been in gaol.  You have been undertaking various courses addressing your lack of English and also some occupational courses.

17Your plea of guilty does demonstrate remorse on your behalf. I have also had regard to the fact that you are a person who comes before the court with no prior criminal history.  Sadly, that seems to be a feature of these sorts of cases. People who organise these sophisticated hydroponic crops target individuals like you who are people who are not known to the authorities and who do not have criminal convictions, and you are exploited.

18Overall I consider that you do have real prospects of rehabilitation for the future.

19I have had regard to your personal circumstances and no doubt your arrest and subsequent time spent in gaol has been a rather salutary lesson for you.  You do not have any real connections here in Victoria.  Your parents are both in Vietnam.  Your father is in ailing health and lives separately from your mother, from whom he is divorced.  He is now being cared for by one of your other brothers.  I accept that your situation would have caused grave anxiety to your mother, who has sacrificed a lot to facilitate you coming to Australia to be educated and that is causing you a degree of distress whilst you are in custody.

20In formulating the appropriate sentence I must impose just punishment.  I agree that it is objectively a serious example of cultivation simpliciter.  I have had regard to the other material provided, the Sentencing Snapshots and also the list of comparative cases.

21Taking everything into account that I must, including the fact that you have been in custody and are relatively isolated given your lack of English and lack of connections with Victoria, I consider that just punishment would be for you to be convicted and sentenced to nine months' imprisonment.

22I make a s.6AAA declaration.  But for your plea of guilty I would have imposed a term of 15 months.  I make the disposal order sought and I make the forfeiture order sought.

23I declare that you have served 258 days of pre-sentence detention and direct that that be entered into the record of the court.  I believe that covers everything.

24MS LENTHALL:  As Your Honour pleases.

25HER HONOUR:  Have we got those orders?

26MS LENTHALL:  Yes, Your Honour, I will hand those up now.

27HER HONOUR:  All right, so, Madam Interpreter, can you just explain to
Mr Hoang that I have signed all the court orders and he will be taken back into custody.  Once he has completed his nine months term he will be transferred to immigration detention and the likelihood is he will be deported shortly thereafter.

28All right, thank you very much for your assistance.  We can adjourn.

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